The Visa Interview Waiver Process Explained

The U.S. Department of State (DOS) rules require every nonimmigrant visa applicant between ages of 14 and 79 to apply in person and be interviewed by a consular officer (see 9 FAM 403.5-2 , the “FAM”).   But there are certain specific exceptions allowing a waiver of the interview requirement.   With the current long interview scheduling wait times at many U.S. consulates,  being able to have an interview waived is very valuable.

Four Interview Waiver Authorities

According to the “FAM”, consular officers have four main authorities to waive interviews (note the current as of the date of this article expiration dates below):

1. For visa renewals – if the renewal visa sought is in the same visa class, and the previous visa is either unexpired or the renewal is within 48 months of expiration – see 9 FAM 403.5-4(A)(1)(a)(3).  Under this authority, the applicant should be applying in the consular district of their “normal” residence.
2. For H-2 visas – if the application is for an H-2A or H-2B visa, the applicant has been previously issued any type of NIV which is either unexpired or the renewal is within 48 months of expiration; a first-time H-2 applicant with either no associated derogatory information or potential derogatory information which the officer determines from the record does not rise to an ineligibility – see 9 FAM 403.5-4(A)(1)(a)(4).  This authority is set to expire on December 31, 2022 – please check the current FAM edition to ensure this remains in effect.
3. Students or exchange visitors – if the application is for an F, M, or academic J visa (excluding nationals of Nigeria or China), the applicant has been previously issued any type of NIV; first-time F, M, or academic J visa applicants who are citizens or nationals of a Visa Waiver Program (VWP) country; who have no prior ESTA denials; who have previously traveled to the United States pursuant to ESTA authorization; and who have no potentially derogatory information or indication of potential visa misuse or ineligibility – see 9 FAM 403.5-4(A)(1)(a)(5).  The  applicant must never have been refused a visa in the past unless such refusal was subsequently overcome or waived.   This authority is set to expire on December 31, 2022 – please check the current FAM edition to ensure this remains in effect.
4. Certain individual petition-based visas – if the application is for an individual, petition-based H-1, H-3, H-4, non-blanket L, O, P, or Q visa, the applicant has been previously issued any type of NIV; is a first-time individual petition-based H-1, H-3, H-4, L, O, P, or Q applicant who is a citizen or national of a VWP country; who have no prior ESTA denials; who have previously traveled to the United States pursuant to ESTA authorization; and who have no potentially derogatory information or indication of potential visa misuse or ineligibility – see 9 FAM 403.5-4(A)(1)(a)(6).  The  applicant must never have been refused a visa in the past unless such refusal was subsequently overcome or waived.  Blanket L visa applications are not covered under this authority.   This authority is set to expire on December 31, 2022 – please check the current FAM edition to ensure this remains in effect.

December 31, 2022 Expiration of Certain Authorities

The DOS policies expanding certain the interview waiver policies are currently set to expire at the end of 2022.   At this time there has been no official indication from DOS that it plans to extend these authorities; however, there are indications from DOS that the interview waiver authorities which are set to expire on December 31, 2022 are likely to be extended.

We urge applicants who may be eligible to claim authorities 2-4 above to consult the US Consulate or the DOS FAM to understand if a waiver would be applicable.    Our office is happy to provide a consultation on this matter as well.

Preparing for and Dealing with Inconsistent Interview Waiver Practices

Unfortunately, there is a wide variation among US Consular posts as to use of visa interview waivers.  Even though DOS encourages consular posts to do so, each Consulate has discretion to apply some or none of the interview waiver authorities.  As a result, some posts do not offer interview waivers in any visa category, regardless of eligibility.   We urge visa candidates to carefully review the eligibility and visa interview waiver information which is normally posted on the US Consulate’s website.

Even if an interview waiver is available,  applicants should understand and be prepared to attend an interview in the event the interview waiver is denied; it is also possible that an applicant who has applied under a waiver to be subsequently called in for an interview (this is is generally rare and based on specific case circumstances).

Conclusion

With the current extremely long visa interview scheduling times, it is very important to understand and, when possible, take advantage of the interview waiver process.   We urge applicants to provide correct and truthful information to the interview waiver eligibility questions as providing false or misleading information may have major negative consequences (in addition to delays).

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.